New Thinking on Miscarriages of Justice

Radelet, Michael L., Judicature

New thinking on miscarriages of justice by Michael L Radelet When Law Fails: Making Sense of Miscarriages of Justice, edited by Charles J. Ogletree, Jr., and Austin Sarat. New York University Press. 2009. 349 pages. $70.00 cloth; $22.00 paperback.

Scholarship on erroneous convictions has come a long way in the past 25 years. While excellent books and articles presenting details of individual cases of the wrongly convicted has been available since the early 1 93Os, scholarly analysis of these cases did not appear until the mid-1980s. Before 1989, when David Vasquez in Virginia became the first prisoner exonerated by DNA, critics often claimed that prisoners released with claims of innocence were, with few exceptions, factually guilty. By rnid-2009, DNA had not only exonerated 240 prisoners, but it also exonerated the scholars from the 1980s and earlier who had claimed that a wide assortment of problems in the criminal justice system was regularly leading to miscarriages of justice.

In short, DNA has confirmed what those earlier case studies had suggested: innocent defendants are regularly (albeit infrequently) convicted because of such factors as tunnel vision by the police, proseciitorial suppression of exculpatory evidence, erroneous eyewitness identification, false confessions, and poor representation by the defense. As such, DNA is important beyond its benefits for the prisoners who have been freed by its use. It has also given us a clear window through which many of the shortcomings of the criminal justice system can be viewed, at least by those who care to learn the lessons.

When Law Fails is the most recent addition to the growing number of books on erroneous convictions. The editors, Charles Ogletree and Austin Sarat, are among the country's leading students of the criminal justice system. Ogletree is Executive Director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, and Sarat, who has already authored or edited some five dozen books, is Professor of Jurisprudence and Political Science at Amherst College. Any work by two such distinguished scholars is bound to attract big audiences.

Pushing the edge

The goal of the book is to push the edge. It does not attempt to present more and more case descriptions in which rogue cops beat the stuffing out of vulnerable defendants until false confessions are obtained. Instead, the editors have compiled chapters that force readers to expand how we conceptualize and think about "miscarriages of justice."

Among the best chapters in the book are those written by the editors. Ogletree gives an account of the 1921 race riots in Tulsa and their aftermath. The Tulsa tragedy began when an angry white mob invaded a black area of town in pursuit of a man who had accidentally stepped on the foot of a white woman. Many businesses and over 1,000 homes were leveled, and as many as 300 people were massacred. In 2001, a Commission established by die Oklahoma legislature recommended reparations and, later, Ogletree himself was involved in efforts to sue for damages. Nonetheless, die victims and their descendants never received a dime. Ogletree uses this to show that in several ways, the "rule of law" was useless in protecting the interests of citizens. While the riot's history includes no erroneous convictions, it is, be argues, a history that unquestionably involves countless (and ongoing) miscarriages of justice.

Sarat's essay examines miscarriages of justice from the angle of how the criminal justice system deals with the guilty, not the innocent. He analyzes themes in recent clemency petitions for deadi row inmates. Recognizing that the odds of winning executive clemency in a death penalty case these days are miniscule, Sarat conceptualizes clemency applications as ways of "memorializing" miscarriages of justice for fumre generations to study. Five major themes that permeate clemency applications are identified: innocence, ineffective assistance of counsel, faulty weighing of mitigation, bias in how cases are processed, and failure to adequately acknowledge mitigating issues related to the defendant's family, religion, and/or contrition. …

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